Smith v Smith, 2016 ABQB 143

Court of Queen ’ s Bench of Alberta Citation: Smith v Smith, 2016 ABQB 143 Date: 20160311 Docket: 4803 147613 Registry: Edmonton Between: Kim Elaine Smith Plaintiff - and - Howard Thomas Smith Defendant _______________________________________________________ Addendum to Memorandum of Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ Background [ 1 ] On December 18, 2016, this Court pronounced its judgment regarding an action for divorce and division of matrimonial property in Smith v Smith, 2015 ABQB 817 .

During the course of settlement of the Judgment Roll, counsel for the Defendant Mr. Smith advised that his client had received new information regarding the value of a lump sum supplemental pension plan (the “supplemental pension”). He indicated he intended to apply to re-open the proceedings, pursuant to Rule 9.13(b), for the Court to receive and consider the new evidence. [ 2 ] I advised the parties I would hear submissions on the application to re-open the proceedings and interrelated issues regarding

costs. The Defendant filed an affidavit attesting that the value of the supplemental pension was $432,000. This compares to the Defendant’s evidence at trial that valued the supplemental pension at $234,000 in 2015 and at $331,000 in 2013, shortly after the parties’ separation. [ 3 ] I commented on the alleged reduction in pension value between separation and trial in my Memorandum for Decision. I noted that the reduction seemed counter-intuitive, but that the Defendant had failed to establish that his pension, when taken as a whole, had increased in value from the time of separation to the time of trial.

As a result, it was unnecessary to decide how to apportion the increase in value of the supplemental pension from the time of separation to the time of trial. [ 4 ] The Defendant now argues based on the new evidence, which he says was not available at the time of trial in November 2015, that the Court should revisit and revise its decision regarding division of the supplemental pension. He says that he should receive the entirety of the increase in value between separation and the date of payout by his employer, Imperial Oil Limited (“IOL”).

Accordingly, he would receive credit for $ 101,000, representing the difference between the current value of $432,000 and the value at separation of $331,000. Each party would receive 50% of $331,000 ($165,500 each). [ 5 ] Ms. Smith argues that the full proceeds from the supplemental pension should be divided equally for reasons given during her written and oral submissions at trial. She argued that the Court should follow the approach set out in McCullough v McCullough, [1992] BCJ no 614 .

In that case, Justice Oppal held that a long time spouse who supported her husband’s career over many years was entitled to share equally in his post-retirement pension assets, even though it grew in value after the parties separated. [ 6 ] In the alternative, Ms. Smith argues the Court should divide the post-separation increase in value unequally to reflect Mr. Smith’s disproportionate contribution to the supplemental pension following separation. She suggested a 60/40 split – similar to, but not the same as, my approach in dividing the value of the IOL savings plan – to which Mr.

Smith also contributed post-separation. This would result in Mr. Smith retaining 50% of the pre-separation value of the supplemental pension ($165,500), plus 60% of the post- separation increase in value ($60,600) for a total of $226,100. Ms. Smith would receive the balance of $205,900. Twenty percent withholding tax would be deducted from these amounts, as agreed by the parties at trial. Findings [ 7 ] The first question is whether the proceeding should be re-opened. In my view, re-opening is necessary for there to be accurate evidence before the Court regarding the final value of the supplemental pension.

The new evidence will provide clarity in settling the terms of the Judgment; it is also relevant to costs. [ 8 ] Maintaining fairness of the trial process necessitates avoiding litigation by instalments and collateral attacks on the overall trial result. In this case, it is important to emphasize that although the final payout of the supplemental pension happened after the conclusion of trial, the Defendant could have provided more reliable and accurate evidence on the value of that asset at trial, had he been inclined to do so.

Rather than adducing such evidence through a witness familiar with the IOL pension program (preferably an expert or company official), the Defendant chose to provide his own evidence on the issue. He supplemented his testimony with an assortment of documents retrieved from his home when I adjourned the trial to give him an opportunity to provide clearer information. [ 9 ] In the circumstances, I am not prepared to re-open my fundamental findings regarding apportionment of the Defendant’s pension.

At trial, the Defendant failed to show that his pension had materially increased in value between separation and trial and I ordered that it be divided equally between the parties. It would be unfair to the Plaintiff to substantially re-open that finding on the basis of evidence submitted after trial in a belated attempt to rectify deficiencies in the Defendant’s presentation of his case. I will, however, accept the alternative proposed by the Plaintiff and order that the increase in value of the supplemental pension between separation and trial ($101,000) be divided on a 60/40 basis in the Defendant’s favour.

The monthly pension will be divided equally. [ 10 ] For clarity, and to bring this matter to a conclusion, I am attaching a Matrimonial Property Statement that sets out the equalization payment to be made, based on the evidence at trial, as well as the division of the incremental supplemented pension. I have also issued a Judgment Roll that takes into account submissions of the parties in respect of that matter. Costs [ 11 ] In my Decision, I held that the Defendant’s habitual non-disclosure should be penalized with costs.

I specifically found that he should bear the costs of the trial, and following the delivery of judgment I confirmed that counsel could speak to costs generally, if necessary. [ 12 ] The Plaintiff argues that costs of the action as a whole should be awarded on Column 2. Further, she submits that she beat her offer and is entitled to double costs. By offer dated August 5, 2015, she offered to settle on the following essential terms: 1. An equalization payment of $261,600 (inclusive of lump sum supplemental pension division); 2. Payment of spousal support arrears ($24,000); 3.

Division of monthly pension from date of entry to December 31, 2012; 4. Payment of court costs owing ($3,600); 5. Spousal support of $6,500 per month; and 6. Review of spousal support on retirement of Defendant.

[ 13 ] In the result, she will receive an equalization payment of $267,320 inclusive of the supplemental pension (see attached revised Matrimonial Property Statement). She will also receive 50% of Mr. Smith’s monthly pension, as of the date of retirement. She had already received spousal support arrears. [ 14 ] The Defendant argues that the Plaintiff’s Offer of Settlement was too uncertain to form the basis of an increased costs award. Furthermore, the monthly spousal support ordered was $1,750, for a limited time period, which is substantially less than that provided in the offer. [ 15 ] I agree with the Defendant that the Plaintiff’s offer contained provisions that were open to

interpretation, particularly in respect of spousal support following retirement. In addition, Mr. Smith’s failure to disclose financial information prior to trial and his related failure to adduce reliable evidence regarding the value of his supplemental pension during the trial served only to damage his case before this Court. I do not consider it appropriate to add to that cost by requiring him also to pay double costs of the action, and will exercise my discretion to require that he pay costs of the action on Column 2. Heard on the 3 rd day of February, 2016.

Dated at Calgary, Alberta this 11th day of March, 2016. R.A. Neufeld J.C.Q.B.A. Appearances: T. Huizinga for the Plaintiff N.S. Virk for the Defendant